Shrestha v Minister for Immigration
[2006] FMCA 1133
•15 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHRESTHA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1133 |
| MIGRATION – Student visa – applicant expelled for cheating – whether breach of Condition 8202 on the basis of a failure to be enrolled in a registered course of study – invalidity of s.20 notice under the Education Services for Overseas Students Act 2000 – findings of fact are for the Tribunal – no error in the Tribunal’s decision discernable – no invalidity in the s.20 notice – application dismissed. |
| Migration Act 1958, ss.359A, 116, 116(1)(b), 116(3), 137J, 137K, 137L(1)(b) Migration Regulations 1994, Regulation 2.43(2)(b), Conditions 8202, 8202(2)(a) Education Services for Overseas Students Act 2000, s.20 |
| Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 Uddin v Minister for Immigration and Multicultural and Indigenous Afairs [2005] FMCA 841 Zhou v Minister for Immigration & Anor (No.1) [2005] FMCA 1826 Morsed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 193 Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 |
| Applicant: | DIXANTA BAHADUR SHRESTHA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2077 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 30 May 2006 |
| Date of Last Submission: | 24 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. J. R. Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondents: | Ms. T. Wong |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2077 of 2005
| DIXANTA BAHADUR SHRESTHA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 5 August 2005 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 29 June 2005 to affirm the decision of a delegate of the respondent Minister made on 12 May 2003 to cancel the applicant’s subclass 560 (Student) visa.
Mr. Shrestha, the applicant, is a national of Nepal who entered Australia as a student on 4 May 2002. The relevant background to the application now before me is derived from the following material:
1)The Court Book (“CB”) filed on 20 October 2005.
2)The Supplementary Court Book (“SCB”) filed on 9 November 2005
3)The affidavit of Sharon Anne Burnett, sworn 30 May 2006, and annexure “A” to that affidavit.
On the basis of this material I note:
1)The applicant was enrolled at an educational institution in Australia (“the College”).
2)On 11 April 2003 the College wrote to the applicant in the following terms (see annexure “A” to the affidavit of Sharon Anne Burnett):
“Dear Dixanta,
You attempted to substitute yourself for another student and sat the Advanced C final exam for that other student. This is gross academic misconduct and you are hereby expelled.
Students are advised that this college will not allow students to cheat and those that do can expect repercussions.
This is to advise you formally that DIMIA will be notified that you have been expelled. Any monies paid to the college will be forfeited.
I have spoken to you personally on Friday morning at 9.45 am to advise you of my decision and the reasons for it. No other chances or notification will be given in this matter – we take this kind of activity very seriously.”
3)On 17 April 2003 the college sent a notice to the applicant pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“ESOS Act”) (“the s.20 notice”) which had the effect of notifying the applicant that he had breached a condition of his student visa (CB 1 to CB 2). The particulars of the breach were notified as:
“STUDENT EXPELLED FOR CHEATING” (CB 1)
4)On 28 April 2003 the first respondent’s Department sought advice from the College, particularly in the following terms:
“It would be appreciated if you would provide the following details:
1. attendance for each term or semester for the length of the current course as well as the total cumulative attendance,
2. Please advise whether any warning notices have been issued to the student and attach copies of relevant documents” (CB 5)
5)The College replied via a facsimile transmission on 29 April 2003 and provided:
i)Attendance information (CB 7).
ii)Academic performance (CB 6) (and specified that the student had achieved an academic result that was at least satisfactory for each of the relevant semesters being: term 2, 3 and 4 of 2002, and term 1 of 2003).
iii)The College provided further comments:
“STUDENT WAS EXPELLED FOR CHEATING. 11- 4-03.
Warning letter sent 10 Sep 02” (CB 6)
6)On 28 April 2003 a delegate of the respondent Minister sent a notice of intention to consider cancellation of the applicant’s visa to the applicant (CB 13 to CB 14). The notice was provided pursuant to s.119 of the Migration Act 1958 (“the Act”) with reference to the power to cancel the visa derived from s.116 of the Act.
7)The notice advised the applicant that the possible grounds for cancellation were:
“Your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course. It appears you have breached condition 8202 of your visa.”
Written directly after this (in what appears, on its face, to be in different hand writing) is also the following:
“Central College has advised that you have been expelled for cheating” (CB 13)
8)The notice provided the applicant with the opportunity to comment, and specifically to give reasons why his visa should not be cancelled. The applicant was invited to provide his comments at an interview with the first respondent’s delegate scheduled for 12 May 2003. (It is not in dispute between the parties that the applicant attended the interview on that date).
9)On the same date (12 May 2003) the Minister’s delegate cancelled the applicant's visa (see CB 15 to CB 16 for the decision record). The delegate recorded the reasons for cancellation on what was before her as being:
“I am satisfied that Mr Shrestha has not complied with condition 8202 of his student visa. His attendance for term 3, 2002 was 78.2%
Mr Shrestha was expelled from Central College on 11/4/03 for cheating in an exam” (CB 15)
10)The decision record further provided under the heading of:
“Compliance or non-compliance with visa conditions”
that:
“Non-compliance with condition 8202- meet course requirements”
Under the heading of:
“The degree of hardship which may be caused to the visa holder, their family members and others, if the visa is cancelled”
that:
“Claims he has been told by his parents not to return to his home country without a degree. Claims he has promised parents he will do so.”
Under the heading of:
“Circumstances in which the ground for cancellation arose”
that:
“Section 20 notice issued by education provider on 17/4/03.”
Further, under “other” that:
“I note that Mr Shrestha is not currently officially enrolled in a registered course of study.”
11)On 16 May 2003 the applicant lodged an application for review with the Tribunal (CB 42).
12)On the same date the Tribunal wrote to the applicant providing an opportunity to forward any documents and/or arguments he wished the Tribunal to consider. The Tribunal also provided some information about the process that it would employ in the conduct of the review (CB 47).
13)On 18 June 2003 the Tribunal again wrote to the applicant inviting him to a hearing before the Tribunal on 24 July 2003. It further invited the applicant to comment, pursuant to s.359A of the Act, on the s.20 notice that had been issued, and in relation to one aspect of his attendance (“Term 3, 2002 records your attendance at 78.2%”) (CB 49 to CB 50).
14)The hearing was ultimately held on 25 July 2003, and the applicant attended and gave evidence (CB 65 to CB 66 records the Tribunal’s account of what occurred at the hearing).
15)The Tribunal also wrote to the applicant on 31 July 2003 (CB 53 to CB 54) pursuant to s.359A of the Act and I note relevantly the following from that letter:
“We have now received from Central College a letter dated 11 April 2003 sent to you. We enclose a copy.
As discussed at the hearing this letter is sent to you for comment and in this regard we reflect out letter sent to you on 18 June 2003.
This letter (along with the material) would be the Tribunal’s reason for affirming the decision to cancel your visa as it certifies that you did not meet the course requirement’s [sic: requirements] of the college”
16)The applicant’s response is reproduced at CB 55 to CB 56.
17)The Tribunal handed down its decision affirming the decision of the Minister’s delegate on 27 August 2003 (CB 61).
18)On 26 August 2004 the Federal Magistrates Court remitted the matter to the Tribunal for reconsideration (SCB 1). It is the decision of the later constituted Tribunal (hereafter “the Tribunal”) which is the subject of the application for judicial review before the Court now.
19)On 2 February 2005 the Tribunal invited the applicant, pursuant to s.359A, to comment on certain information (SCB 5). The letter stated:
“You are invited to comment, in writing, on the following information on the files:
· On 11 April 2003 Central College expelled you from further study at the College.
· From 16 May 2003 you were enrolled in a registered course at Pacific College of Technology.
· The Central College informed the Department that your attendance for term 3, 2002 was 78.2%”
The letter further notified the applicant:
“This information is relevant to the review because it indicates that at the time the Department cancelled your student visa on 12 May 2003 you were not enrolled in a registered course. Also it indicates that you failed to maintain at least 80% attendance for each term of your course. If it is true, the Tribunal may find that you were in breach of visa condition 8202 which requires you to be enrolled in a registered course of study and to maintain at least 80% attendance for each term or semester of your course. If the Tribunal finds that condition 8202 was breached, then under the Migration Regulations, cancellation of your visa is mandatory.” (CB 5 to CB 7).
20)On 10 March 2005 the applicant responded through his advisers. This letter is reproduced at SCB 8 to SCB 11 and includes an attached statement by the applicant.
21)On 8 April 2005 the applicant was invited to appear before the Tribunal at a hearing which was scheduled for 20 May 2005 (SCB 18 to SCB 19).
22)The Tribunal made its decision, and handed down its decision on 29 June 2005. The Tribunal's decision record is reproduced at SCB 24 to SCB 33.
The Tribunal’s “Findings and Reasons” are reproduced in its decision record at SCB 32.4 to SCB 33.7. The Tribunal found that:
1)The delegate made a decision to cancel the applicant’s visa “pursuant to paragraph 116(1)(b) and sub-s.116(3) of the Act and paragraph 2.43(2)(b) of the Regulations because of her finding that the review applicant had not complied with condition 8202 of his visa” (SCB 32.3).
2)It was satisfied that the applicant’s attendance for term 3, 2002 was above 80% (CB 32.4).
3)In such circumstances he did not breach condition 8202 on that basis (attendance) (CB 32.4).
4)In relation to his “academic result”, it accepted that it was “satisfactory”, and that his subsequent “expulsion” did not affect this certification (CB 32.5).
5)It accepted, despite assertions to the contrary from the applicant’s adviser, that the last “limb” of condition 8202 required enrolment at the relevant time in a “registered” course (CB 32.6).
6)The evidence “clearly establishes” that the review applicant was not enrolled on 12 May 2003, and despite claims that he had approached another education provider, the Tribunal found that there was no material “which indicates that such an enrolment was effected” (CB 32.7).
7)As a result of the expulsion action by the College he “cannot be said to have been enrolled in any course at that institution” (at the relevant time) (CB 32.8).
8)Although the applicant contacted other institutions, “available evidence” indicated that they were considering his situation on
12 May 2003, and no enrolment had occurred prior to 16 May 2003 (CB 32.9).9)The applicant’s position that he could not force an institution to enrol him at that (relevant) time, “is not really relevant to the question as to whether he was in fact enrolled in a registered course at the relevant time” (CB 33.1).
10)As a result of the above, a breach of condition 8202, as it attached to his visa on 12 May 2003, had occurred as he was not, at that date, enrolled in a registered course (CB 33.2).
11)The combined “operation of subsection 116(3) and regulation 2.43” require that the visa be cancelled. The Tribunal found it had no discretion in this regard (CB 33.3).
12)In relation to the applicant’s submission that the review application had been “looked at differently by the range of decision-makers who have considered it” the Tribunal found that the applicant was on notice of the potential breach. In this regard it referred to the issue of the Notice of Intention to Cancel of
28 April 2003, and noted that he had been properly notified of the possible breach and its basis (CB 33.5).13)That even if notification had not occurred, with reference to Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 and subsequent decisions to the same effect, the Tribunal “is able to remedy any such defect” which it found had been achieved (CB 33.6).
In all these circumstances the Tribunal affirmed the decision under review to cancel the applicant’s Student (Temporary) (Class TU) visa.
The originating application to this Court, filed on 5 August 2005, complains:
“A. The Migration Review Tribunal made a jurisdictional error by failing to take into consideration relevant material.
B.The Migration Review Tribunal made a jurisdictional error by misdirecting itself as to the nature of its role, duties and responsibilities.
C.The Migration Review Tribunal made a jurisdictional error in that the Tribunal made an error of law in its construction of the relevant law applicable in this case.”
On 5 December 2005 an amended application was filed. The applicant complained that the decision of the (second) respondent:
“1.Was made without jurisdiction or is affected by an error of jurisdiction.
2.Was an improper exercise of power conferred by the Migration Act 1958 (Cth).”
Each ground was particularised.
At the hearing before me on 30 May 2006 Mr. Young appeared for the applicant and Ms. Wong for the respondent Minister. Leave was granted in Court for the applicant to file a further amended application. The applicant complains:
“1.The Migration Review Tribunal made a jurisdictional error by assuming, without any evidence on the subject, that upon expulsion by an education provider, the legal effect of such expulsion was that the enrolment of the applicant in a registered course ceased.
2.The Migration Review Tribunal made a jurisdictional error by finding that a breach of condition 8202 as it applied to the visa held by the applicant on 12 May 2003 occurred in that the applicant was not on that date enrolled in a registered course.
3.The Migration Review Tribunal made a jurisdictional error by relying on an invalid notice given to the applicant pursuant to s.20 of the Education Services for Overseas Students Act 2000.”
I should note that at the commencement of the hearing Ms. Wong sought to put into evidence before the Court the affidavit of Sharon Anne Burnett, sworn on 30 May 2006, attaching a copy of a one page letter which was “omitted” from the Court Book. This letter was referred to in the Tribunal’s reasons. Mr. Young did not object, and leave was granted for the affidavit to be read into evidence.
Mr. Young for the applicant confirmed that the applicant’s complaints about the Tribunal decision were:
1)The “expulsion enrolment” issue.
2)The “s.20 ESOS” issue.
The applicant’s first complaint about the Tribunal's decision derives from the Tribunal’s finding, or as Mr. Young put it, “assumption”, that the applicant was not enrolled in a registered course on 12 May 2003 (the date of cancellation of the visa). The submission was that, as a result, this led the Tribunal to conclude that there had been a breach of condition 8202 (a condition that attached to the visa held by the applicant) in that on that date the applicant was not enrolled in a registered course as required. As a result of this breach, and relying on the combined operation of s.116(3) and regulation 2.43, there was no discretion in the Tribunal to reach any conclusion other than that the applicant’s visa must be cancelled. The applicant’s case is that while various documents, as reproduced in the Court Book and Supplementary Court Book, make reference to the applicant’s expulsion for cheating, that there was no primary or documentary evidence before the Tribunal of this expulsion or its effect. On this basis therefore, the applicant challenges what he says is the “assumption” which the Tribunal made in its decision (SCB 32.7 - paragraph 47), that an expulsion is necessarily equivalent to not being enrolled. The applicant’s claim is that the evidence did not establish that the applicant was not enrolled in a registered course on the relevant date, and that therefore the Tribunal was required to consider the legal effect of the terms of any expulsion before a conclusion could be drawn that the applicant’s enrolment had, in fact, ceased.
With reference to relevant provisions of the ESOS Act Mr. Young submitted that the intention of relevant provisions of that Act were that the registered education provider was required to maintain student records for the period for which the student had paid “course money” for the provision of a course. Further, that what flowed from this was that the task of the Tribunal was to establish the period for which the applicant was enrolled. He submitted that the effect of the expulsion (which was not in dispute) was not to cancel enrolment but, rather, to prevent entry to, and attendance at, the institution. His argument was that there was nothing before the Tribunal which entitled it to make the “simple assumption” that enrolment automatically ceased upon expulsion. The jurisdictional error, therefore, was related to its central finding, because the central finding was based on an assumption which was unsupported by evidence.
Simply, the applicant’s argument is that there is a plain difference between an expulsion and a cancellation or cessation of enrolment. The submission is that the decision by an institution to expel a student is not irrevocable. If such revocation did occur, then there would be no need to restore the enrolment of the student. The applicant’s claim therefore, was that a student remains enrolled throughout the period for which he had been originally enrolled (and for which he had paid) unless there was some express and specific term in the expulsion, which would lead to a contrary conclusion. The argument therefore was that enrolment continues for the period for which the student has paid, and that the effect of the expulsion is simply that the student is not able to exercise any right of attendance during that period of enrolment. The argument was that there was no evidence before the Tribunal as to the terms of the enrolment, or the terms of the expulsion, and that the Tribunal therefore was not entitled to make the assumption that where an expulsion occurred the enrolment had thereby ceased. The Tribunal therefore was not entitled to find that he was not enrolled in a registered course as of that date (even though he may have been expelled and noting that there had been no primary evidence of that expulsion put before it) and that the applicant had breached condition 8202 as of 12 May 2002.
Mr. Young further submitted that there were documents “in existence” which showed that the applicant was still registered after the relevant date (being 12 May 2003):
1)The letter of expulsion is dated 11 April 2003 (annexure “A” to the affidavit to Sharon Ann Burnett) and the s.20 letter is dated
17 April 2003.2)At CB 8, a certificate of attendance from the College is reproduced (dated 29 April 2003), and states that the applicant “is attending this institution enrolled in…” and that he “…commenced 29 April 2002 due to complete 8 April 2004”.
3)At CB 19, a certificate of attendance is reproduced which was clearly signed by the same person who signed the letter of
11 April 2003 (the principal of the College) and is dated 12 May 2003, the date of the delegate’s decision to cancel the visa. It states and certifies that the applicant is enrolled at the College and that he started his course on 29 April 2002, and was due to finish on 8 April 2004.Mr. Young’s submission therefore, was that there was evidence before the Tribunal (notwithstanding that it had before it a letter that notified the applicant that he had been expelled) that was from the education provider, and showed that the applicant, notwithstanding the expulsion, remained enrolled in a registered course with that education provider. The requirement, pursuant to condition 8202, was that he was enrolled in a registered course, and there was no argument that the applicant needed to be enrolled in a registered course. However, there was evidence before the Tribunal, contrary to the “assumption” made by the Tribunal that “expulsion” equals “not being registered”, that showed that the applicant continued to be registered as at the relevant date, notwithstanding the letter of expulsion. Mr. Young's submission was that the Tribunal failed to address, in light of the evidence before it, the central issue of whether expulsion meant, or could not have meant, “no longer enrolled”. In light of all the circumstances before it therefore, he submitted that the Tribunal failed to consider the question of enrolment and its effect, which was the relevant issue in relation to condition 8202(2)(a): – was he enrolled in a registered course at as at 12 May.
Ms. Wong’s response was that the Tribunal's assumption, if indeed it was an assumption (that expulsion equalled not being registered) was a “commonsense assumption” in relation to what had taken place. The submission was that the Tribunal did address the appropriate question, and this is shown by the way it approached the answer to that question:
1)At SCB 5, the Tribunal specifically wrote to the applicant and invited comment on information which the Tribunal said it had obtained from the relevant files - that on 11 April 2003 he had been expelled from further study at the College and that on
16 May 2003 (after the relevant cancellation date) he was enrolled in a registered course at another College. The Tribunal explained:“This information is relevant to the review because it indicates that at the time the Department cancelled your student visa on 12 May 2003 you were not enrolled in a registered course…If the Tribunal finds that condition 8202 was breached, then under the Migration Regulations, cancellation of your visa is mandatory.”
2)At SCB 8 to SCB 9 the applicant's advisers (at the time), who were both migration agents and solicitors, acknowledged that:
“The applicant was expelled by the Central College”
Ms. Wong’s submission was that the manner in dealing with this issue by the applicant and his advisers was to say that the expulsion was not justified. There was no challenge that notwithstanding the expulsion the applicant continued to be enrolled.
3)Further, at the time (SCB 8.8 to SCB 9.2) the applicant’s advisers responded to the Tribunal’s request for comment, by arguing that the issue of enrolment was not a relevant condition to condition 8202 and that the only relevant elements were “attendance” and obtaining “satisfactory academic results”.
4)At SCB 9.3 the advisers provided information that from 16 May 2003 the applicant was enrolled in a registered course at another education provider. Ms. Wong submitted that this was presumably as a result of the fact that the applicant knew that he could no longer attend courses at the College.
5)At SCB 10.7, being a part of a statement provided by the applicant himself in response to the Tribunal's request for comment, at paragraph 6, there is an express acknowledgement by the applicant that he was expelled by the College, and his approach to this issue was to explain his view of the circumstances which led to this expulsion.
6)At CB 24.7 the applicant had, in an earlier statement, given a consistent response on that this issue - that he had been expelled by the College, and had provided a similar explanation for his version of events.
7)At SCB 31 the Tribunal records that the applicant’s adviser had submitted that the applicant had been expelled on 11 April 2003, as a result of allegations regarding having cheated in an examination. Ms. Wong’s submission was that there was every opportunity at that point for the applicant to have put forward an argument that he was still enrolled at that time, but did not do so.
8)At SCB 31, at paragraph 38 and 39, the applicant again provides as an explanation that he was accused of cheating but had not done so and confirmed that he had sought “other enrolment” after he was expelled from the College.
9)At SCB 32, at paragraphs 41 and 42, the applicant explained his attempts to obtain other enrolment after his expulsion and ultimately said:
“He could not force any education provider to enrol him.”
Ms. Wong directly took issue with the applicant’s submission that the task of the Tribunal was to establish the period for which the applicant had been enrolled, and that the effect of expulsion was not to cancel enrolment, but rather to prevent entry to the institution. Ms. Wong took issue with the applicant’s assertion now that there was nothing before the Tribunal to entitle it to simply “assume” that enrolment automatically ceased upon expulsion. Her submission was that whether the applicant was registered in a course or not, at the relevant date, is a matter that goes to a finding of fact which is a matter for the Tribunal, and not the Court. Further, that there was no evidence now to demonstrate that the applicant ever sought to persuade the Tribunal that the expulsion did not necessarily mean that he was no longer registered or enrolled. Ms. Wong’s submission was that the time for fact-finding was before the Tribunal, and noted in particular that the applicant had been given ample opportunity by the Tribunal to deal with this issue, and none of the argument now being put before the Court was put before the Tribunal at the time of the making of its decision.
In essence therefore, the respondent’s position was that the Tribunal did address the central question of what the expulsion meant (in the applicant's circumstances) and on what had been put before it, the Tribunal was entitled to come to the view, as the relevant finder of fact, that expulsion, particularly given that the applicant was unable to attend the courses, meant that he was no longer enrolled in a registered course. Ms. Wong emphasised that the letter of 11 April 2003, from the principle of the College to the applicant (annexure “A” to the affidavit of Sharon Ann Burnett) had a clear note of finality about it, in terms of the College’s relationship with the applicant, and in particular where the letter from the principle of the College stated:
“No other chances or notification will be given in this matter – we take this kind of activity very seriously.”
Her submission was that this was consistent with the view that the Tribunal took - that where expulsion occurs, enrolment in a registered course ceases.
When I pressed Ms. Wong as to the document at CB 19, being the document headed “Certificate of Attendance” and dated 12 May 2003, Ms. Wong’s submission was that:
1)The fact that the Tribunal did not refer to this and (the any similar reference) does not necessarily mean that it did not take them into account.
2)This clearly was not a matter raised by the applicant in support of his case, nor by his adviser in support of his case before the Tribunal. That being the relevant time for the raising of this issue.
3)The documents or “certificates” appeared to be “computer-generated documents” and this could possibly explain the “mismatch” between what is stated on these documents and the letter from the College advising of the expulsion. In support of this last point, Ms. Wong referred to CB 32, where the document dealing with attendance clearly has the instruction:
“CLICK HERE FOR ATTENDANCE CERTIFICATE”
And:
“Back to Student Account Homepage”
Neither Mr. Young nor Ms. Wong provided any judicial authority for the relevant definition of “enrolment” or “expulsion”. Mr. Young submitted that the word “expulsion” does not necessarily mean that the applicant did not continue to be enrolled in a registered course of study. I note however that the Macquarie Dictionary gives the following definition of expel:
“To cut off from membership or relations. To expel a pupil from a school. To discharge or eject.”
This does connote a characteristic of “finality” as submitted by Ms. Wong in relation to the letter of notification of expulsion. However, it is not for the Court to determine what expulsion means, or may mean, in the applicant’s circumstances. Nor is it for the Court to find whether the applicant was or was not enrolled. The answers to these questions require, at the relevant time, a finding of fact. I accept Ms. Wong’s submission that this is within the proper function of the Tribunal as the decision maker. The Tribunal was required to determine whether the applicant, at the time of the cancellation of the visa, failed to meet any of the requirements that attached to his visa. It is not in dispute that a failure to meet any of these requirements would lead to a cancellation of the visa. Mr. Young submitted that the Tribunal did not address the correct question. I do not accept this submission. It is clear from the Tribunal’s decision record, and in this regard see SCB 32.4, that the Tribunal identified the relevant issue as the need to determine whether the applicant, at the time of the cancellation of the visa, satisfied all the requisite conditions attaching to that visa, as contained in condition 8202. The Tribunal clearly addressed each of the relevant factors. It was satisfied that the applicant's attendance rate met the relevant requirement, and that his academic result was satisfactory. It then turned to consider whether the applicant was enrolled in a registered course at the relevant time.
Mr. Young submits that the Tribunal had before it relevant documents (at CB 8 and in particular CB 19), and that these documents showed, given what was stated on their face, that expulsion did not equate with not being registered and that this was an indicator, therefore, that the Tribunal failed to ask the correct question. That the material was before the Tribunal is clear from the Tribunal’s own decision record. At SCB 27.3 the Tribunal states:
“The Tribunal has had regard to oral evidence given at a hearing held on 20 May 2005 and to documents contained on Tribunal case files N05/00282 and N03/03385 and Departmental files CLF2003/21962 and CLF2003/4992.”
The documents were before the Tribunal, but so was a large amount of other material. I accept Ms. Wong’s submission that the Tribunal is not obliged to specifically note in its decision record each and every piece of information that is before it. I am persuaded by Ms. Wong’s submission that the Tribunal, at least as at 2 February 2005 (the date of its letter to the applicant seeking comment on relevant issues) understood the relevance of the expulsion to the issue of whether the applicant was enrolled in a registered course. Further, that the two dot points in its letter of that date to the applicant (SCB 5.7) which was sent to the applicant seeking his comment pursuant to s.359A of the Act, clearly show that the Tribunal focused on the issue of expulsion, and enrolment in a registered course. Further, that from this letter, and from the Tribunal's account of what occurred at the hearing it conducted with the applicant (which is not challenged by any contrary evidence put before this Court), was that the applicant was left in no doubt that the Tribunal took at least the preliminary view that the expulsion indicated that he was not enrolled in a registered course as of the relevant date. The applicant and his adviser, who was a solicitor, were given ample opportunity to address what the Tribunal determined, from all the material before it, was the relevant question, and how that relevant question should, or could, be answered. On what had been put before it therefore, the Tribunal was entitled to find, as it did at SCB 32.8:
“In this matter, the evidence clearly establishes that the review applicant was not enrolled in a registered course on 12 May 2003.”
The fact therefore that there may have been some other documents in the files, which may have shown something different, is a matter for the Tribunal.
I can see no error in the formation of the question that the Tribunal posed and identified as the question which needed to be answered. Nor can I see any error in how it went about determining the answer to the question, particularly as the applicant was given ample opportunity, both in writing, and at a hearing to address this issue. Nor can I see error deriving from the ultimate finding by the Tribunal that in all the circumstances was based on the evidence before it. In all therefore, in accept Ms. Wong’s submission in this regard, the applicant’s complaint on this issue is not made out.
The applicant’s second complaint derives from the s.20 ESOS notice. The applicant’s complaint in this regard is that the form of the s. 20 notice in this case, was the form considered in Uddin v Minister for Immigration and Multicultural and Indigenous Afairs [2005] FMCA 841 (“Uddin”), Zhou v Minister for Immigration & Anor (No.1) [2005] FMCA 1826 (“Zhou”) and by the Full Court in Morsed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 193 (“Morsed”). Essentially, the argument was that the s.20 notice was misleading by omission, and that a “trap” was thereby created, leading to a situation where the applicant would be better served by not complying with the s.20 notice and having the visa automatically cancelled under s.137J, and then applying for revocation under s.137K. If revocation was granted then the breach would not be able to be used as a basis for cancellation of the visa under s.116. The argument was that the invalid s.20 notice denied the applicant the opportunity of being able to approach the respondent Minister and seek the Minister's satisfaction under s.137L(1)(b), that any breach was due to “exceptional circumstances” beyond the applicant’s control. The Minister may therefore have revoked the cancellation. The invalid s.20 notice acted to deny the applicant this opportunity. On this basis therefore, the submission was, in reliance on relevant authorities, that the Tribunal fell into error, particularly as it did not consider the circumstances of expulsion.
The issue of the consequence of any defect in the s.20 notice has been the subject of judicial consideration. As indicated, the applicant relies on Uddin, Morsed and Zhou (at first instance). Uddin and Morsed both involved cancellations pursuant to s.137J of the Act. The case before the Court now involves cancellation pursuant to s.116. Two recent Full Court decisions support the respondent’s position.
In Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 (“Humayun”) the Court was concerned, on appeal, with the issue of cancellation of a student visa pursuant to s.116 of the Act. Wilcox J. with whom Conti J. agreed, stated the following in relation to the effect of any defect in the s.20 notice:
“[30] Mr Catterns argued the s 20 notice, issued to Mr Humayun on 7 February 2003, was defective for the reasons enunciated by McInnis FM in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (No 1) [2005] FMCA 1826. That case is presently under appeal so it is preferable for me not to offer any view about its correctness. Counsel for the Minister contended that, even if the s 20 notice was incapable of having the consequences set out in Subdivision GB of Division 3 of the Migration Act (ss 137J – 137P), that did not affect the power of the delegate to effect a visa cancellation under s 116 of the Act. They referred to the judgment of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333; 141 FCR 448. Furthermore, said counsel, a legal deficiency in the delegate’s decision would not affect the power of the MRT to review the purported decision and to make such order as the delegate ought to have made. They cited three recent Full Court decisions: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248, 211 ALR 261; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58, 143 FCR 314 and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218.
[31] Both the respondents’ contentions are correct. There is nothing in this point.”
In relation to the applicant’s reliance on Zhou, following the hearing in this matter, the Full Court handed down its Judgement in Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96, allowing the Minister's appeal against the earlier Judgement in the Federal Magistrates Court. In particular I note at [43] of the joint Judgement:
“43 In our view, the case for the Minister is correct when it submits that the Federal Magistrate had no proper basis for distinguishing in this case the reasoning of Full Courts in Yu and Humayun and of Ryan J in Gerhard. We accept and apply the reasoning there set out. We do so because the statutory provisions in issue do not admit of any different reading even in a case where the response to a s 20 notice under the Overseas Students Act gives rise to the occasion for delivery of a notice under s 119 of the Migration Act. There is nothing in the provisions to admit of a different application because of what the case for M/s Zhou describes at the "legal interaction" between these provisions. It is to the provisions themselves that attention must be directed. They are devoid of any support for a different approach in that circumstance.”
Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333, a Full Court decision, deals with the issue of whether any subsequent constraints are imposed upon the Tribunal in the exercise of its decision making function by the issuing of the s.20 notice. This is authority for the proposition that the s.20 notice does not affect the power to effect a visa cancellation under s.116 of the Act. Further, and specifically, in relation to the claim that the s.20 notice was “invalid”, a clear line of authority, as referred to in Humayun, states that the Tribunal’s power to review the delegate’s decision, and to make an order such as the delegate ought to have made, is not affected by any invalidity in the s.20 notice.
Relevantly, the position of the applicant in Zhou was that alleged defects in the s.20 notice led to the applicant being denied the opportunity (as is submitted in the case before me) of applying under s.137K of the Act for revocation of the cancellation. The Full Court did not accept the relevant reasoning of the Federal Magistrates Court on which the applicant before me now relies. In all therefore, in light of the relevant Full Court authorities, this ground does not succeed.
The applicant has not been able to show jurisdictional error in the Tribunal's decision. The application is therefore dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 15 August 2006
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